Blog

UDLA members may submit a blog posting by sending an email to the Executive Director at udlaxd@gmail.com.

Recent Developments

A prominent plaintiff's law firm recently referred to a newer law review article on the billed vs. paid issue. We will likely see more references to the article which is very biased toward the plaintiff's position. We thought some of you may be interested in reading it.

Provides that a condominium or community association shall comply with certain requirements before bringing a legal action against a declarant related to a period of declarant control or period of administrative control.

Repeals a provision that disavows the private attorney general doctrine

H.B.90

Insurance Opioid Regulation

This bill requires commercial insurers, the state Medicaid program, workers' compensation insurers, and public employee insurers to implement policies to minimize the risk of prescribing certain controlled substances

HB0202

Trespass Amendments

Enacts provisions related to trespass by a guest in a residence

SB0098

Excess Damages Claims

Establishes a process for addressing personal injury claims to the extent that they exceed a statutory limit.

SB0111

Unmanned Aircraft Amendments

This is a fairly significant bill. It will be interesting to see how homeowners insurance policies, and coverage disputes, will address this subject.

The Utah Court of Appeals affirmed the district court ruling in Willis v. DeWitt stating Utah Code Section 78B-2-225 (3)(a) is a statute of repose and therefore may not be tolled by application of a discovery rule. The contract claims were not brought within 6 years of completion of construction as required by statute, and are thus time barred. Full opinion linked here.

A Summit County Jury found that the Defendant was not negligent arising from a collision that occurred with the Plaintiff during an adult hockey game in the Park City Hockey no check league. Plaintiff was on a breakaway towards the goal. Defendant was on defense and attempted to establish a position between Plaintiff and the goal and placed his stick to attempt to block the Plaintiff's shot. He was unable to block the puck, Unfortunately, both players attempted to occupy the same spot of ice at the same time. As a result of the collision, both fell to the ice. Defendant had a laceration to his cheek from Plaintiff's stick. Plaintiff received 2 cracked ribs and, a sprained AC Joint. Defendant was called for a check, a minor penalty. The league rules specifically state that playing the puck rather than the body is the rule. Although there is incidental body contact, if players can avoid body conduct, they are required to do so. Plaintiff hired the State Supervisor of referees to state that Defendant should not have gone so aggressively towards Plaintiff's position, particularly if Plaintiff was shooting the puck. The video of the game had been sent to the league administrator, who reviewed it and did not escalate the call on the ice.

The interesting aspect of this case, was Judge Harris's decision to try it under a simple negligence standard rather than a reckless standard. So, the jury was instructed with the MUJI negligence instruction with a couple of interesting modifications. First, if the activity was within the ordinary range of activity of a no check league, then that was evidence that would not support a negligence finding. However, the jury was also instructed that a violation of a safety rule can be evidence of negligence, but it is not required. Because Utah does not have a specific statute, rule or case precedence on using the Reckless standard, the court determined that the default was negligence. A take away is if you are going to rely upon the referees in the game and the players in a specified recreational activity, to be safe, you should designate them as unretained experts so that they can specifically state that such activity is not out of the ordinary. Wisconsin has a statute specifically applying the reckless standard to apply to recreational/sporting activities.

It was interesting to try this as a negligence case and argue that an inadvertent collision was not negligence.

*A second post-judgment interest rate may also be news as it went into effect in May 2014 and it is found at 15-1-4(3)(b):

Except as otherwise provided by law or contract, all final judgments under $10,000 in actions regarding the purchase of goods and services shall bear interest at the federal post judgment interest rate as of January 1 of each year, plus 10%. Hyperlink below.

Terry Rooney and Brad Blackham of Snow Christensen & Martineau recently obtained a unanimous no cause jury verdict in a medical malpractice case. Terry and Brad represented the University of Utah Hospitals and Clinics. Plaintiff Ella Turner was represented by Mike Worel and Colin King. Plaintiff presented evidence of $8 million in special damages and requested an additional $8 million in general damages.

Bradley W. Madsen and S. Grace Acosta of the firm Scalley Reading Bates Hansen & Rasmussen, PC, recently obtained a defense verdict on behalf of Sunpeak Association. . The defendant, Sunpeak Association, is an incorporated Homeowners Association of approximately 380 homes located in Park City, Utah. The case was brought by a closely held corporation that owned one of the properties within the Sunpeak community. The case was tried before the Honorable Ryan M. Harris

The plaintiff alleged that Sunpeak Association had violated the terms of the Community Covenants and Restrictions by failing to enforce, or improperly enforcing, multiple provisions. The plaintiff further alleged that Sunpeak Association was in violation of Utah's Community Association Act, Section 57-8a-213, which restricts an association from taking arbitrary or capricious enforcement action. The plaintiff had previously began construction of a garage addition to the property, and the parties disputed whether construction was authorized. Sunpeak Association ultimately fined the plaintiff for its actions and placed a lien on the property. The plaintiff also alleged that other properties in the Sunpeak community were in violation of the Community Covenants and Restrictions, and that Sunpeak Association was liable for not properly enforcing the Community Covenants and Restrictions as to those other properties. In closing arguments, plaintiff's counsel sought $250,000 in damages, which allegedly arose from a diminution in value to the plaintiff's property. The plaintiff also sought punitive damages.

In response, the defense argued that Sunpeak was not in breach of the Community Covenants and Restrictions, and that none of its actions constituted arbitrary or capricious enforcement action. The defense pointed out that the Community Covenants and Restrictions are primarily the responsibility of individual homeowners, and that the responsibilities of the Association required it to apply sound judgment and discretion when enforcing the Community Covenants and Restrictions. The defense also argued that the alleged violations of the Community Covenants and Restrictions did not cause any discernible diminution of value to the plaintiff's property.

The case was tried over four days. The jury of eight deliberated for approximately eight hours before returning a verdict in favor of Sunpeak Association. The jury concluded that Sunpeak Association did not breach the Community Covenants and Restrictions, and that Sunpeak Association did not take any enforcement action that was arbitrary or capricious. Accordingly, there was no award of damages.

Occasionally, we represent fact witnesses who also qualify as experts. What do you do when opposing counsel begins asking for expert opinions of such a witness when you have not designated him/her as an expert? Here is my recent experience.

I was asked to represent a design engineer in a deposition taken in a personal injury case. The company for whom the design engineer worked was not a party to the lawsuit but was closely affiliated with the defendant, i.e., his employer does a lot of design work, and oversees a lot of construction, for the defendant. Plaintiffs’ counsel wanted to find out what my client’s personal involvement in the project had been, and whether certain safety issues had been taken into account during the design phase and then the construction phase of the project.

Most of the questions were focused upon issues of fact: What were your responsibilities? Did you visit the construction site? Did you think about putting a railing up? Did you evaluate the cost of making a particular improvement or change in design, etc. Near the end of the deposition counsel for the plaintiffs asked my client for an expert opinion: with the benefit of hindsight, and based upon your years of experience as a design engineer, do you see any way in which the design of this project could have been made safer?

Naturally, to prove that I was awake and listening, I objected that this witness was appearing voluntarily as a fact witness, not an expert witness, and was not in a position to be giving expert testimony. Not to be deterred, counsel for the plaintiff pressed me: “are you instructing the witness not to answer?”

“Yes,” I said. “You know the question is inappropriate because this man is here only as a fact witness. You are not entitled to ask for opinions in this circumstance.”

“What is the privilege you rely upon to instruct him not to answer?” was the retort. “You can only instruct a witness not to answer if you have a privilege you are trying to protect.”

Of course, there is no privilege in the common law or statutory sense of the word, at least so far as I know, that prevents an obviously qualified fact witness from giving expert opinions. Nevertheless, it was entirely inappropriate and unfair, both to the witness and to the relationship between the witness’s employer and the defendant, to request such an opinion. It was one of those questions that had no good answer. If the witness said “I don’t have an opinion” then plaintiffs’ counsel would impeach his credibility as a design engineer. If he gave an opinion that was not properly thought out, it would be embarrassing to the witness, his employer and the defendant.

I took the position that U.R.Civ.P. Rule 26(a)(4)(B) was a sufficient justification for an instruction not to answer. It requires the one deposing the expert to pay the witness’s reasonable hourly fees for deposition time. We had a lengthy discussionundefinedcompletely civil, I might addundefinedon the record regarding our respective positions. Neither of us called the judge but counsel for the plaintiff vowed to file a motion and to reconvene the deposition. Since he already had experts I figured nothing would come of this threat. I underestimated his determination.

Within a few weeks I was notified that plaintiffs’ counsel had filed a Statement of Discovery Issues with the court. As a non-party to the lawsuit, I took the position that this procedure was inapplicable and inappropriate, and that the proper approach was to serve my client with a subpoena (we had appeared voluntarily) and to give me an opportunity to object. I argued that the Court did not have jurisdiction over my witness until he was brought before the court on some kind of official process. I did not think it advisable to get involved in the underlying case so I did not respond to the Statement of Discovery Issues. Since the Statement remained unopposed the Court entered an Order requiring my witness to appear for the 2nd round of his deposition. “Good luck enforcing this order” I told plaintiffs’ counsel.

A few weeks later counsel for the plaintiffs served my client with a formal subpoena directing him to appear for his deposition in Salt Lake County, where he lived. The case was pending in Weber County. I filed a formal objection to the subpoena, relying not only upon Rule 26(a)(4)(B), but also upon Rule 45(e)(3)(I), which makes it improper to require an undisclosed expert to give opinions that the deposing lawyer did not request. Further, I relied upon Rule 37 to point out that the Second District Court does not have jurisdiction to enforce a subpoena served upon a witness in the Third District. The full panoply of briefing ensued. The centerpiece of plaintiffs’ arguments was that there is no privilege that allows a fact witness to refuse to answer questions seeking expert opinions. (He was also unjustifiably critical of me for other reasons which I will not go into.)

Judge DiReda eventually issued an Order denying the plaintiffs’ motion to compel and sustaining my objection to any further questioning of my client for the purpose of eliciting expert testimony. He ruled that the Statement of Discovery Issues was not the correct method to use when dealing with non-party fact witnesses and that plaintiffs’ counsel was unjustified in his efforts to elicit expert opinions from a non-party fact witness. He also ruled that he lacked jurisdiction to enforce the subpoena because it was served upon a witness living in a different district for a deposition that was to take place in the residential district.

I have encountered other circumstances where opposing counsel wanted expert opinions from my fact witnesses but I have never had to put the question to the court nor challenge the axiom that the only basis for instructing a witness not to answer is the existence of a privilege. To the extent that Judge DiReda’s ruling is any indication of the law, I would say that illegal questions are also a sufficient basis for instructing a witness not to answer.

In an unpublished ruling, Judge Benson found that failure to both file and serve a complaint for a de novo trial of a UIM/UM arbitration award within 20 days of the award bars the de novo review, and makes it subject to a Rule 12(b)(6) motion to dismiss. In this case, the claimant filed the complaint for a de novo trial within 20 days of the arbitration award as mandated by the statute, but did not serve the UM/UIM insurer until approximately 50 days after award. The complaint was dismissed on a 12(b)(6) motion.